Unauthorised 'screen scraping' may breach Computer Misuse Act, says expert in wake of Italian court ruling

Out-Law News | 07 Jun 2013 | 10:15 am | 3 min. read

The 'screen scraping' of content may constitute a breach of the UK's Computer Misuse Act in some cases, an expert has said.

Commercial law expert Clare Francis of Pinsent Masons, the law firm behind Out-Law.com, said that businesses that sanction unauthorised 'screen scraping' of content belonging to others may face prosecution. Screen scraping involves the use of software to automatically collect information from websites and systems.

Under the Computer Misuse Act it is an offence for a person to knowingly cause "a computer to perform any function with intent to secure access to any program or data held in any computer, or to enable any such access to be secured" without authorisation. A person can be fined or imprisoned if they are found guilty of such an offence.

Francis said that businesses should consider whether their 'screen scraping' of others' content breaches the Act.

The act of screen scraping also presents other legal risks, such as infringement of copyright, trade marks, database rights and a breach of website terms and conditions, but an Italian court ruling has thrown doubt about whether service providers can enforce those rights against screen scrapers.

A court in Milan has ordered Ryanair to pay an online travel agency, Viaggiare, €50,000 plus interest in damages and more than €25,000 in legal fees and other costs over a dispute about the practice of screen scraping. The court said that the air carrier had acted in breach of competition rules by preventing passengers from flying with them where they had bought tickets for flights through Viaggiare. Viaggiare is the Italian subsidiary of aggregation company Bravofly.

"The conducts of Ryanair amount to unfair competition," said a translation of a summary of the Milan court's decision provided to Out-Law.com by Italian law firm Orsingher Ortu, which acted for Viaggiare in the case. "These conducts have been carried out by sharing to the public false and discrediting information, with reference both to the alleged illegality of the conducts of OTAs (online travel agencies) - as Viaggiare is -, to the judicial decisions favourable to Ryanair and to the alleged fact that OTAs apply to the public prices two or three times higher than the actual prices of airlines, and by threatening and by actually not taking on board passengers who had bought the flight ticket by OTAs."

"Ryanair’s pretention to not allow any commercial mediation in the sale of its flight services constitutes abuse of dominant position on the downstream market of the services of travel agencies," the summary said.

Ryanair has been banned by the Italian court from claiming that Viaggiare's operation is illegal and an infringement of its trade marks and database rights.

Marco Consonni, a lawyer Orsingher Ortu, told Out-Law.com that the ruling raised questions about whether Ryanair could continue to use technological measures to prevent OTAs from scraping its content or whether the carrier would need to open its booking system to those agencies.

Aggregation companies allow easy online price comparisons between providers of products.. It has been most popular in the personal finance and travel industries. While some companies welcome the extra business such aggregation brings them, some do not and, like Ryanair, prohibit screen-scraping or any other commercial use of their website in their terms and conditions.

In 2008 Ryanair cancelled tickets booked with Bravofly, claiming at the time that the aggregator was infringing its copyright and trade mark rights and that its use of Ryanair's content to sell its services amounted to 'passing off'. The company said that it was seeking to "proactively eliminate screen scraping" of its website by deploying technological measures.

Bravofly said its service allowed consumers to find "information that is carefully hidden by airline companies" which "systematically adopt an insidious policy of unjust taxes on the base prices of airline tickets".

"In the absence of a court ruling about the specific practice of screen scraping in the UK, there remain doubts about the legality of the activity," Clare Francis of Pinsent Masons said. "Other practical problems also mean that many aggregator websites currently buy data from service providers rather than use screen scraping technology to gather the information."

"Purchased data is generally more reliable than the information that has been scraped, because there are often many different price points, where different charges are applied to make up the total cost of a service, that screen scraping software does not always recognise," she said.

"However, regulators are increasingly pressurising businesses and the travel industry in particular to be more transparent about the final costs that consumers face paying. Greater transparency may allow screen scraping to become more reliable, and further rulings like the one in Italy will help legitimise the practice. I would expect, though, that service providers that wish to stop others from aggregating their content will turn to technological solutions to prevent that from happening. Competition authorities will have to determine whether such practices are fair, whilst screen scrapers will have to ensure that their activities do not breach the Computer Misuse Act," Francis added.

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